Critics see proposed ethics commission cure as bad medicine

DENVER — A bill aimed to fix Colorado’s ethics commission seeks to offer new protections for officials defending themselves against ethics complaints. Although critics say the measure would do more harm than good, they fear that, in a building brimming with possible defendants, it is sure to gain traction.

“I think most people around here are just doing their job,” said Rep. Amy Stephens, a Republican from Monument who is sponsoring the proposal. She thinks the commission’s procedures and the responsibility of its members should be more clearly defined in a way that guards against abuse that can run up legal costs and ruin reputations.

“Lawmakers are all really trying, and we need be more transparent with them,” she told The Independent.

The bill comes as the number of complaints filed with the Colorado Independent Ethics Commission continues to grow. Its docket includes many legitimate complaints but also an increasing number of politically motivated Hail Marys where what matters is that the complaint has been filed, not whether it has any merit — because in the hands of election-campaign attack-ad writers, all it takes is a complaint to the commission to turn a public servant into a “corrupt politician.”

Critics say the bill seems to be inspired by one case in particular: The drawn-out, high-profile slugfest that stemmed from a complaint filed in October 2012 against Secretary of State Scott Gessler. In June 2013 — eight months, a crowd of headlines, countless accusations and hundreds of thousands of dollars spent in defense fees later — the commission found Gessler guilty of “breaching the public trust for private gain” when he spent $1,800 of office money on travel and unrecorded personal expenses.

Gessler felt embattled from the moment Colorado Ethics Watch, acting on media reports, filed the complaint that launched the investigation. As a private attorney, he had sparred for years against Ethics Watch on behalf of his conservative-politics, campaign-finance and election-law clients. He strongly suspected the group had ulterior motives for watchdogging his spending. He accused the bipartisan five-member commission of targeting him and siding with his liberal enemies. He hired a team of three lawyers from different firms to represent him. He refused to appear before the commission to provide testimony, forcing a judge to issue an order compelling him to appear. And he is now appealing the commission’s ruling.

During the proceedings, Gessler’s lawyers characterized the commission — founded in 2006 by popular vote — as a kangaroo court. They described it as an official but only quasi-legal setting where a defendant’s reputation could be ruined but where the rules of procedure fall far short of those governing courts of law.

As it turns out, Gessler’s outsized reaction to the complaint suggests he knew what was coming. His bid now to become governor is slumping, even in strong conservative circles, partly because he has been tainted by the ethics probe and the commission’s findings.

Stephens’s bill, HB 1258, seeks to bolster protections for state employees like Gessler who are brought before the ethics commission. It would ensure they are provided with tax-paid legal counsel and that they have the right to sue individual members of the commission for damages. It also spells out how the commission will inform defendants of the charges brought against them in advance of any public hearing on the case.

Stephens noted that state lawmakers typically can’t afford the costs of defending themselves against an ethics complaint and that raising money to cover legal fees or accepting pro-bono representation likely violates the state’s lawmaker gift ban, which would compound any initial ethics questions.

For Elliot Fladen, an attorney involved with the drafting of the bill — and an occasional Colorado Independent blogger — the bill is about defendant rights.

“If a commissioner intentionally violates the clearly established rights of a respondent, they should be treated similarly to any government agent who intentionally violates rights — like a police officer who beats a suspect without cause. They should be liable.”

Fladen added that any violation for which a commissioner could be held liable would have had to be willfully undertaken. He cites federal law to make his case.

But critics say the drafters of the bill have misread the law.

Robert Wechsler, director of research at watchdog group City Ethics, recently wrote that the law is meant to protect “individuals from mistreatment by government officials, such as the police and prison guards. It is strictly a law that protects citizens from government misconduct.” He said that’s not what the Stephens bill aims to do.

“The Colorado bill would instead protect government officials accused of misconduct from citizens sitting on the ethics commission, putting these citizens in a position where they may be sued for violating the rights of officials, something that is inconceivable under [the federal law].”

Luis Toro, Colorado Ethics Watch director, called Stephens’s bill a wish-list for anyone hoping to intimidate members of the commission during an investigation. Government employees are protected against lawsuits, he said, partly so they can do the jobs they were elected or appointed to do.

“So, why single out the members of the IEC?” he asked. “Their decisions rise out of their official duties — making these decisions is their official duty… So, maybe you single them out because you want to be able to intimidate them. Well, you’d soon see the commission finding in favor of the defendants every time.”

“This is a messaging bill,” he said, adding that he doesn’t believe it attempts to address “any of the real problems with the ethics commission.”

As many observers have noted, the commission has been starved of resources since its inception and is one of the most understaffed in the country. It employs roughly half the support neighboring and less-populated states like Nebraska and Kansas have provided for their ethics commissions.

“Almost no one [in the legislature] supported Amendment 41,” Toro said of the 2006 initiative that launched the commission. “Whatever majority party, they’ve never wanted this commission to succeed.”

Colorado is the only state that provides public money exclusively to defend against ethics charges but no money to investigate them. Toro says that role has been outsourced to nonprofits like his or to citizens themselves. He said Coloradans are routinely shocked and put-off when they come to the commission with evidence of wrongdoing and are told they will have to act essentially as the prosecutor in a case against the Attorney General’s office.

Toro says the idea at the heart of the bill — that state employees are the victims in an ethics violation case — is “ridiculous.” But he agrees with the bill’s supporters that there needs to be more clarity and uniformity around the kind of defense the state offers its employees.

Gessler spent nearly $200,000 in public money to defend himself. Not all officeholders have access to that kind of support. Indeed, many enjoy access to no public funds at all to defend themselves against an ethics charge.

When former Senate President John Morse was accused in 2011 of filing for per-diem work pay at the Capitol on days he wasn’t working, there was no Senate President’s Office till for him to dip into. Nor could he even have accepted pro-bono defense, as Stephens noted, because that would have violated the state’s ban on lawmakers accepting gifts. In the end, Morse didn’t hire counsel, and the commission quickly dismissed the case.

Toro said the Morse and Gessler cases underscore a problem that begs to be solved.

“If anything positive comes from this bill, it would be for the legislature to take a look at the current wild disparity in defense that’s provided for people accused of a violation and do something about it.”

The problem, he said, is that the “Cadillac” level of defense the state provided Gessler has provided an untenable precedent.

“Now we have a situation where if an employee gets a complaint filed against them and then they don’t get the Gessler treatment, they can argue they are being treated unfairly.”

The Stephens bill doesn’t detail how to pay for defense counsel or how fees might be capped.

Defendants who come before the City and County of Denver’s Board of Ethics, for example, can receive up to $10,000 for counsel that they have to repay if they lose their case and are found guilty.

Carolyn Tyler, spokesperson for the attorney general’s office, says that, as the law stands today, it is up to the director of each of the departments of state government to decide whether a staffer should pay back the state for his or her unsuccessful defense before an ethics charge. She said any questions that might arise from that law would best be directed to Gessler’s office.

Gessler, after all, is director of the department in which he serves. If and when his appeals run out, and he loses the case, and his legal tab is finalized, it will be up to him to decide whether he should pay back to the state the $200,000-plus he will have spent on the case.

*Note: The original version of this post stated that Tyler “acknowledged that, in the Gessler case, the system raises more ethical questions.” The current version includes a more accurate description of her response.

[ Image: Colorado Secretary of State Scott Gessler. ]